Nothing to Die Over

A narrow assisted-suicide ruling Original Article

The news about Monday’s 6-3 assisted suicide ruling is not as bad as euthanasia opponents might have feared. Indeed, even in the midst of disappointment that Oregon carried the day, there is some moderately good news: Gonzales v. Oregon was not an exercise in judicial activism. The Supreme Court did not issue a sweeping endorsement of physician-assisted suicide. Nor, did it “uphold” the Oregon statue as a matter of constitutional law. Rather, the Court’s decision is so narrowly drawn and steeped in the arcania of regulatory and statutory interpretation that it would normally spark little interest outside of administrative-law journals.

Of course, that isn’t a storyline likely to sell newspapers. Hence, the general media spin about the case has been that, as Reuters put it, the Supremes issued a “stinging rebuke” to the administration and endorsed the assisted suicide as a legitimate public policy. But this isn’t true. Justice Anthony Kennedy’s majority decision even acknowledged that the Justice Department was “reasonable” in its assertion that “medicine’s boundaries” preclude assisted suicide. The majority also explicitly agreed that the federal government possesses the inherent power to prevent narcotics from being prescribed for assisted suicide, for example, by amending the federal Controlled Substances Act. The case provided neither a sweeping assertion of the validity of assisted suicide nor a ringing endorsement of its legality being strictly a matter of state’s rights.

So if the federal government can, in theory, preclude controlled substances from being used in assisted suicide, why did it lose? The majority believed that former Attorney General John Ashcroft went about that task in the wrong way. Specifically, it ruled that Ashcroft exceeded his authority when he determined that assisted suicide was not a “legitimate medical use” of controlled substances without obtaining any information about the practice of medicine, assisted suicide, or other relevant matters necessary to come to that conclusion from outside the Department of Justice. Consequently, the Court found, Ashcroft’s interpretation, while reasonable, was not persuasive because it exceeded his “expertise.”

Instead of the Department of Justice, the proper place to determine the medical (il)legitimacy of assisted suicide lies elsewhere within the executive bureaucracy (presumably the Department of Health and Human Services) where bureaucrats and management would possess greater depth of knowledge about medical issues. (I told you the ruling was mind-numbingly arcane.)

Finally, the Court interpreted the Controlled Substances Act as primarily aimed at controlling drug trafficking and addiction. Hence, Justice Kennedy wrote that it cannot be read to explicitly preclude assisted suicide. And it is true: The CSA is silent about assisted suicide — probably because when it was passed decades ago, lawmakers never dreamed that it would ever be an issue. Recent legislative efforts to outlaw the use of controlled substances for assisted suicide, while promoting their aggressive use in pain control, foundered on the shoals of a Senate filibuster led by Oregon Democrat Senator Ron Wyden.

The dissenting opinions were first rate. Justice Antonin Scalia (joined by Chief Justice John Roberts and Justice Clarence Thomas) complained that “if the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.” Scalia seemed to be hinting that the majority refused to enforce this commonsense and admittedly “reasonable” finding because its ruling was result-driven rather than legally mandated. Justice Thomas’s individual dissent supported this view when he noted that the Court’s reasoning directly contradicted its own seven-month-old ruling in Gonzales v. Raich — a medical-marijuana case. “The Court’s reliance upon the constitutional principles it rejected in Raich,” Thomas sarcastically noted, “is perplexing.”

But that is all grist for law-review articles and legal symposia. The real question is what the likely political impact of the decision will be — or, more accurately stated, the effect likely to be produced by the spin about the case that will be produced by the media and assisted-suicide advocates.

There seems little doubt that the ruling will put some wind back into the sails of the assisted-suicide/euthanasia movement that has been becalmed in the United States for the last decade. But it will be a slight breeze, not a gale. In truth, legalizing assisted suicide is very low on people’s political-priority scale. Demonstrators are not exactly marching in the streets demanding the right to be killed by a doctor and few politicians run on the plank of authorizing physicians to write lethal drug prescriptions. Indeed, a recent Pew Poll found that support and opposition to assisted suicide was evenly divided 46 percent for and 45 percent against — hardly an unstoppable political tide. Moreover, experience has shown that when people are forced to look beyond the abstract idea of assisted suicide and actively consider the dysfunctional real-world context in which assisted suicide would be practiced — the problems associated with HMOs, difficulties in obtaining quality health insurance, and rampant elder abuse, to mention just a few — their support for transforming killing into a medical act sinks like a crowbar thrown off of a bridge.

The American euthanasia movement has not moved its agenda forward since 1994 when Oregon legalized assisted suicide. Beyond relatively small cadres of very dedicated activists, both pro and con, most people are just not that interested in the issue. Thus, the limited ruling issued by the Supreme Court yesterday is unlikely to have a sufficiently substantive impact to materially change the current political dynamic.

— Wesley J. Smith is a senior fellow at the Discovery Institute and a special consultant to the Center for Bioethics and Culture. His website is

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.